The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's November 4, 2008, motion to dismiss. An Order to Show Cause issued on January 22, 2009, directing petitioner to show cause why the motion should not be granted for petitioner's failure to oppose the motion. Petitioner's response, filed on February 4, 2009, does not address why no opposition was timely filed but purports, in some degree, to oppose the motion. Given petitioner's pro se status, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972) (per curiam)(pro se litigant pleadings held to "less stringent standards than formal pleadings drafted by lawyers"), the court will find that petitioner has discharged the show cause order and filed an opposition.
According to petitioner, he was convicted on July 25, 2005, of thirty counts of lewd acts with a child under fourteen, pursuant to Cal. Pen. Code § 288(a), and sentenced to a term of 133 years.*fn1 Petition, p. 1; see also, respondent's Lodged Doc. A. The grounds of his challenge are: 1) denial of his Fifth, Sixth, and Fourteenth Amendment rights to a jury trial on aggravating sentencing factors; 2) de facto term of life without possibility of parole is grossly disproportionate punishment in violation of the federal and state constitutions; 3) sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment; 4) trial court abuse of discretion and violation of due process in refusal to strike prior strike conviction and in imposition of consecutive sentences for all 29 subordinate terms; 5) trial court's abuse of sentencing discretion violated substantive due process under the Fifth and Fourteenth Amendments (incomplete argument as to this ground within petition). Id., pp. 7-38.
Respondent moves for dismissal on the ground that the petition contains unexhausted claims, as well as some claims that do not present a federal question. Motion to Dismiss (MTD), pp. 1-7. Specifically, respondent contends that petitioner failed to exhaust, under claim 2, his ineffective assistance of counsel argument and failed to exhaust his claims of sentencing court abuse of discretion within claims 4 and 5. Respondent also contends that claims 2 and 3 do not raise a federal question and are thus meritless.
Respondent states that petitioner appealed his conviction but filed no state habeas corpus challenges, an assertion petitioner does not refute in his opposition. MTD, p. 3. Within the petition for review to the state supreme court, two issues were set forth as follows: 1) "Did the imposition of consecutive terms based on judicial fact-finding by a preponderance of evidence violate the Sixth Amendment right to jury trial as applied to the states via the Fourteenth Amendment?" and 2) "Did the imposed sentence violate the Eighth Amendment proscription of cruel and unusual punishment as applied to the States via the Fourteenth Amendment?" MTD, p. 3, citing Lodged Doc. B[, pp. 1-2]. Respondent notes that the state supreme court denied review without comment. Id., citing Lodged Doc. C.
Respondent argues that the ineffective assistance of counsel claim (IAC) imbedded within ground 2 of the instant petition is unexhausted. MTD, pp. 5, 7. Petitioner's argument as to each of respondent's assertions is that all the issues he raised to the Third District Court of Appeal were also raised in the petition for review to the California Supreme Court ("to the best of [his] recollection....") Opp., p. 2.*fn2 Without clarifying which ones, petitioner contends that he raised IAC claims as to two of the issues. Id., at 3. To the extent the court should find any claims unexhausted, petitioner asks for a stay and abeyance while he seeks exhaustion of state court remedies, citing Rhines, infra. Id. Petitioner concludes that his appellate attorney informed him that all of his state court remedies had been exhausted so he submitted those claims to this court. Id.
The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 512 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
In the instant federal petition, it does appear that petitioner includes an IAC claim as an alternate argument in support of his claim 2 -- that the de facto term of life without possibility of parole is grossly disproportionate punishment in violation of the federal and state constitutions -- but the court can locate no other ground within which petitioner raises an IAC claim. Petition, pp. 16-18. From this court's review of the Third District Court of Appeal's unpublished decision, it does appear that petitioner raised the same alternate argument before that court on the same ground. Lodged Doc. A (referenced in the decision under section III), p. 8. Petitioner also appears to have appended the appellate court's decision to the petition for review, although the actual brief containing the issues raised in the petition for review does not appear to reference an IAC claim. Lodged Doc. B. The Supreme Court has held that: ordinarily a state prisoner does not "fairly present" a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.
In a recent unpublished Ninth Circuit decision,*fn3 where a petitioner (in the state of Washington) had attached lower court petitions to a petition to the Washington State Supreme Court, this was enough to distinguish it from the Baldwin ruling, the Ninth Circuit panel finding that in Baldwin no lower court opinion had been attached to the state supreme court petition. Miller v. Quinn, 307 Fed. Appx. 96, 98 (9th Cir. Jan. 9, 2009). In the instant petition, petitioner evidently did attach the appellate court ruling but did not attach the accompanying briefs as appendices to the ...